The 7th Circuit Court of Appeals reminded us last week that it is a fine line sometimes between an employee resigning voluntarily or being constructively discharged.
In Ulrey v. Reichhart, the plaintiff was an assistant principal in a junior/senior high school. She enjoyed due process protections like many public employees, especially school personnel, and she could only be discharged for good cause after being given an opportunity to be heard.
It seems that the plaintiff did not get along well with the defendant, the school district superintendent. Among other concerns, an issue arose regarding whether the plaintiff had completed the necessary coursework to renew her administrator’s license, a requirement for her position. It seemed that a mix up had occurred over this information for the plaintiff as well as other employees of the school district. After the plaintiff either failed or was unable to correct the mix up with respect to her coursework, the defendant superintendent met with her on two occasions to discuss the matter. The second meeting was contentious, with the plaintiff alleging that he was inferring that no mix up had occurred with her records and her teacher/administrator license was not eligible for renewal. The parties agree that during that meeting the defendant told the plaintiff that it would be in “her best interest” if she resigned. He also presented her with a letter of resignation ready for her signature. The plaintiff signed the letter and the school board accepted it that same night.
The plaintiff sued the superintendent and the school district claiming that she was denied her due process rights (to a hearing and a just cause standard). She alleged that when the defendant indicated that it was in her best interest to resign and presented her with a resignation letter ready for her signature, he implied a threat that if she did not resign she would be discharged. Feeling that she had no choice but to resign, she claimed that she involuntarily resigned which violated her rights.
The court disagreed. It identified “two types of ‘involuntary resignation’ that amount to termination: constructive discharge and coerced resignation. ‘Constructive discharge’ is akin to a hostile work environment claim and may occur ‘when an employer makes employment so unbearable that an employee resigns.’ Coerced resignation, on the other hand, is ‘characterized by the presence of a 'Hobson’s choice' in which the employee must resign or suffer severe consequences, such as facing criminal charges.”
Finding that plaintiff’s resignation fit neither of these situations, the court noted “the possibility of eventual termination, without more, cannot render a resignation involuntary for due process purposes; otherwise, a due process violation would result whenever a public employee resigned rather than asserting his or her (usually extensive) procedural rights.”
Public employers should generally offer an employee the chance to resign in lieu of discharge, especially when the employee has due process rights. While it will not render the employee ineligible for unemployment benefits, an employee who resigns rather than run the risk of being discharged may relinquish their due process claims.
